Foell was convicted of murder and sentenced to life in prison. He contended he was denied the effective assistance of counsel because his trial attorney did not offer evidence of FAS to support a defense of diminished capacity.

Foell's mother had apparently urged his trial counsel, without success, to raise FAS as some sort of defense.

The federal magistrate's opinion stressed that the trial attorney had looked at Foell's psychiatric records and his substance abuse treatment records, and had had Foell evaluated by three experts. 2004 WL 240934 at *9. However, a review of an earlier state court opinion in this case indicates that the attorney, while undertaking a general review of Foell's mental capacity, may never have looked specifically into whether he had FAS.

In explaining the decision not to raise FAS as a diminished capacity (or other defense), the federal magistrate (and earlier state court) relied heavily on a written evaluation at the time by a physician retained by the attorney to evaluate Foell:

"Based on my experience in working with Fetal Alcohol Syndrome in a Native American population and a non-Native American population, it has been my experience that this syndrome would in no way take the onus of responsibility off individuals in criminal cases with the mental status that David Foell presents with."

2004 WL 240934 at *10. [Whether a particular mental status would provide a defense under state (here Iowa) law would depend on the substance of state law. Additional facts might throw more light on this. But it would seem inappropriate for an attorney to rely on a physician to evaluate the legal significance of such evidence].

The state court had noted that neither party had cited a case in which FAS had successfully been used as a defense. 2004 WL 240934 at *11. [That is not surprising. The successful assertion of a defense at trial would almost never result in any sort of reported opinion. In any event, whether FAS was a plausible defense in this case would turn on an evaluation of Iowa law and of the disabilities of this particular defendant.]